714 F2d 20 Sonnier v. Maggio J

714 F.2d 20

Elmo Patrick SONNIER, Petitioner-Appellant,
Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, and
William J. Guste, Jr., Attorney General of the
State of Louisiana, Respondents-Appellees.

No. 83-4498.

United States Court of Appeals,
Fifth Circuit.

Aug. 17, 1983.

Michael Baham, Metairie, La., for petitioner-appellant.

Bernard E. Boudreaux, Jr., Dist. Atty., New Iberia, La., Dracos D. Burke, Asst. Dist. Atty., for respondents-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.


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Petitioner, Elmo Patrick Sonnier, is under sentence of death to be executed by the State of Louisiana in the early hours of August 19, 1983. His petition for habeas corpus was dismissed by the United States District Court for the Western District of Louisiana on August 16, 1983. Petitioner seeks to appeal to this Court and now moves that the execution be stayed. Though the district court denied the stay of execution, it granted a certificate of probable cause for this appeal. By doing so the Judge certified that petitioner has made a substantial showing of the denial of a Federal right. Petitioner must therefore be afforded an opportunity to address the underlying merits of his appeal. See Barefoot v. Estelle, --- U.S. ----, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Because we are unable to afford that opportunity and decide the case on the merits by the date of the scheduled execution, 32 hours hence, the motion for stay is GRANTED. The Clerk will immediately notify the respondents that the authorities of the State of Louisiana are to take no action toward the execution of the sentence upon Elmo Patrick Sonnier until receipt of further orders of this Court.